Supreme Court to hear State’s appeal over surrogacy ruling

Court to decide if media permitted ahead of landmark appeal next month

The appeal has been brought by the State against a High Court decision that a genetic mother of twins born to a surrogate could be named as the legal mother on the children’s birth certificate.

A seven-judge Supreme Court will hear a landmark appeal next month concerning the rights of all those involved when children are born under surrogacy arrangements.

The appeal has been brought by the State against a High Court decision that a genetic mother of twins born to a surrogate – the mother’s sister – could be named as the legal mother on the children’s birth certificate.

The appeal will be heard on February 3rd but, before it opens, the court will decide whether members of the media will be permitted to attend.

Arising from the introduction of laws permitting the reporting of some childcare and family law cases, it will be up to any party who objects to the media reporting to set out their reasons why.

In November, the Irish Human Rights Commission and Equality Authority secured permission from the court to make arguments in the appeal. Among the issues the commission wants to address are the personal rights of children born to surrogates, while the authority believes it can be of assistance arising from its work on broader surrogacy rights issues.

The authority had never previously sought to be joined to a Supreme Court appeal as an amicus curiae – assistant to the court on legal issues. Its counsel Nuala Butler told the Supreme Court in November the authority’s interest arose from its historic involvement in surrogacy issues.

The State does not want issues relating to the Equal Status Act be raised during the appeal, given that these were not raised at the High Court. However, the Equality Authority said there is a “lack of reality” in this stance.

Nuala Egan, for the commission, said it wanted to address human rights issues under the Constitution as informed by international human rights instruments and to make arguments concerning the personal rights of the children.

Mary O’Toole SC, for the State, said it appeared the authority wanted to raise issues as to whether the registrar of births engaged in prohibited conduct in refusing to register the genetic mother as the twins’ mother. Those matters had not arisen in the High Court, she said.

It seemed both bodies would adopt the position that the genetic parents should be registered as the parents, counsel added.

Counsel for the parents indicated they were not objecting to the bodies being joined as long as this did not delay the “very urgent” appeal.

The Supreme Court agreed to join the commission and authority as amici curiae but stressed they must confine their submissions to the issues raised in the High Court and Supreme Court appeal.